Separation of Powers in the Balance.

Today, Justice Department officials, including Attorney General Alberto Gonzales, Deputy Attorney General Paul McNulty and FBI Director Robert Mueller, threatened to resign en masse if documents seized this week by the FBI from the offices of Representative William Jefferson (D-LA) were returned. Congress, led by Speaker Dennis Hastert (R-IL) have demanded that the materials taken in the raid be returned unopened. President Bush has frozen them for forty-five days.

First of all, I would like to make it very clear that I believe that there is ample evidence (even in the absence of the raid) that Representative Jefferson is guilty as sin of accepting bribes while in office (that $90,000 found stashed in the freezer at the Representative's home gives a whole new meaning to the term, 'cold, hard cash') using his paid congressional staff to perform personal business and various other violations both of the law and congressional ethics. He is one of two Democrats who showed up last year on a list of the thirteen most ethically-challenged members of Congress. I don't care that William Jefferson is a Democrat. He's corrupt and he needs to go. If I lived in his district I would vote Republican just to get rid of him, unless the Justice Department does it sooner, which I hope they do. There should be no place in Washington for people with these kinds of ethics, and I hope he spends the next several years as Duke Cunningham's cellmate.

That said, the separation of powers makes it clear that while a Congressman is engaged in his official duties (and Speaker Hastert is right about this), he is exempt from being subject to the Justice Department or any other extension of the Executive branch. That is why Congress has their own rules to police themselves. Often those rules have been ineffective (hence the Abramoff scandal and other problems that I have been very critical of) and the most severe penalties-- expulsion of a member-- are virtually never even considered. Nevertheless, the Constitution sets out clearly that the Congress and the Executive branch are co-equal branches of government. That does not mean that Congressmen are above the law, but rather that whatever investigation occurs must be done while respecting the limits of their official duties. In that context, the Congressman's office, where he conducts his official business, must be respected. On the other hand, his home (including his freezer) is outside of those duties and is subject to search (and other than William Jefferson himself, no one has objected to that part of the investigation. That doesn't mean not to go after him either. The Justice Department was able to collect the evidence needed to prosecute Duke Cunningham and send him to prison, as well as they did to former Ways and Means Chairman Dan Rostenkowski (D-IL) a few years ago when he went to prison.

It is worth noting that Congress itself has respected the separation of powers. In both the Nixon and Clinton impeachments, the focus of the impeachment debate dealt with accusations of abuses of power or illegal activities, not with policy decisions. And that is why I have not jumped on the 'impeach Bush' bandwagon over Iraq that some on the left have pushed. Leaving aside the obvious (1. that this Congress won't impeach Bush and 2. if they did, then Dick Cheney would be President, with pretty much identical results), the main reason I don't support it is that as much as I detest the President's decisions on Iraq, and as much as I detest the selective cherry picking of information to butress a policy decision that had been made months earlier while pretending to engage in 'diplomacy,' these were policy decisions and it is up to the voters (who unfortunately failed to do so in 2004) to hold the President and Congress accountable for policy decisions, no matter how bad those decisions are. And perhaps ironically, Vice President Cheney, himself a proponent of stronger executive power but also a former member of Congress, criticized the Justice Department for overreaching in the case and advised the President that the documents should be returned.

The real threat here is that if it is established that the Executive Branch (through any arm) has jurisdiction over Congress, then it opens the door for the Executive Branch to gain supremacy over Congress. And that way leads, sooner or later to dictatorship. Should someone who was truly evil gain the Presidency (and remember that Hitler rose to power in a Republic, not by a coup or a revolution), they could then in theory use this power to threaten or silence the Congress into complacency or cooperation. The Founding Fathers envisioned this which is why they wrote the Constitution to prohibit it.

I believe that the Justice Department can get the goods on William Jefferson with or without raiding his office (as they did get the goods on Cunningham and Rostenkowski), and I hope they do. But in the long term scheme of things, a corrupt Congressman, as odious as it is, is less of a threat to the United States than to erode the separation of powers and make Congress subject to any part of the Executive Branch.